Uncounselled waiver of the right to counsel

Section 12 of Article III of the 1987 Constitution says: "Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel."

The doctrine that an uncounselled waiver of the right to counsel is not to be given legal effect was initially a judge-made one and was first announced on 26 April 1983 in Morales vs. Enrile and reiterated on 20 March 1985 in People vs. Galit. In short, before the ruling in Morales, there was no express provision in the 1973 Constitution regarding a counselled written waiver. It was only when the ponente in said case said so, and when the "error" was repeated over and over in jurisprudence, that the drafters in the 1986 Constitutional Convention was induced to solidify and constitutionalize this common law principle.
In that case of Morales v. Enrile, Justice Concepcion, Jr. wrote: "No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence."

The same ponente in Morales v. Enrile wrote People v. Galit. In Galit, "The prisoner was arrested for killing the victim oil the occasion of a robbery. He had been detained and interrogated almost continuously for five days, to no avail. He consistently maintained his innocence. There was no evidence to link him to the crime. Obviously, something drastic had to be done. A confession was absolutely necessary. So the investigating officers began to maul him and to torture him physically. Still the prisoner insisted on his innocence. His will had to be broken. A confession must be obtained. So they continued to maltreat and beat him. They covered his face with a rag and pushed his face into a toilet bowl full of human waste. The prisoner could not take any more. His body could no longer endure the pain inflicted on him and the indignities he had to suffer. His will had been broken. He admitted what the investigating officers wanted him to admit and he signed the confession they prepared. Later, against his will, he posed for pictures as directed by his investigators, purporting it to be a reenactment."

In Galit, Justice Concepcion, Jr. quoted himself in Morales. He wrote: "At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence."

At this juncture, a much older case must be reviewed. This is the case of Magtoto v. Manguera (1975) which established the non-retroactivity of the new rights of the accused created by the then new 1973 Constitution. "A confession obtained from a person under investigation for the commission of an offense, who has not been informed of his right (to silence and) to counsel, is inadmissible in evidence if the same had been obtained after the effectivity of the New Constitution on January 17, 1973. Conversely, such confession is admissible in evidence against the accused, if the same had been obtained before the effectivity of the New Constitution, even if presented after January 17, 1973, and even if he had not been informed of his right to counsel, since no law gave the accused the right to be so informed before that date."

Magtoto cited Miranda v. Arizona by the United States Supreme Court which touched on the waiver of the rights of an accused. "To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warning have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make statement. But unless and until such warning and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him."

Back in the day, the waiver of the accused's rights could be made as long as knowingly and intelligently made and there was no need for a written waiver signed by him with the assistance of counsel. It must be noted, however, that the rule that the waiver should be "knowingly and intelligently made" still applies until today.

Miranda v. Arizona added: "The [accused] may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning."

Fast forward to 1996, in Filote v. Sandiganbayan, petitioner claims that such proscription against an uncounselled waiver of the right to counsel is applicable to him retroactively, even though his custodial investigation took place in 1983 — long before the effectivity of the new Constitution.

Filote reiterated the ruling in Magtoto. It ruled that the specific provision of the 1987 Constitution requiring that a waiver by an accused of his right to counsel during custodial investigation must be made with the assistance of counsel may not be applied retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Constitution. However, it emphasized that a person under investigation for the commission of an offense is constitutionally guaranteed certain rights. One of the most cherished of these is the right to have competent and independent counsel preferably of his choice. The 1987 Constitution, unlike its predecessors, expressly covenants that such guarantee "cannot be waived except in writing and in the presence of counsel".

Accordingly, waivers of the right to counsel during custodial investigation without the benefit of counsel during the effectivity of the 1973 Constitution should, following the argument, be admissible. Although a number of cases held that extrajudicial confessions made, while the 1973 Constitution was in force and effect, should have been made with the assistance of counsel, the definitive ruling was enunciated only on April 26, 1983 when the Court, through Morales, Jr. vs. Enrile, issued the guidelines to be observed by law enforcers during custodial investigation. The Court specifically ruled that the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel.

The issue regarding the waiver of one's right to counsel (to be heard by himself and counsel) is altogether different. Remember that the accused has the right to have competent and independent counsel preferably of his own choice. However, in People v. Basay, it was ruled that said right refers only to the time when an accused is under investigation for the commission of a crime. The constitutional provision provides:

Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (Section 12 of Article III)

The adjectives competent and independent, which qualify the kind of counsel an accused is entitled to during investigation, were not found in the previous Constitution. Their incorporation in the 1987 Constitution was meant to stress the primacy of this right to counsel. (G.R. No. 86941. March 3, 1993)

The lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accused’s behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would be merely be giving a routine, peremptory and meaningless recital of the individual’s constitutional rights. In People v. Basay, this Court stressed that an accused’s right to be informed of the right to remain silent and to counsel "contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle."

Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) "should be engaged by the accused (himself), or by the latter’s relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition." Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic.

The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. (G.R. No. 169431. April 3, 2007)

On the other hand, the right to counsel during trial (to be heard by himself and counsel) can be waived. It is true that an accused person shall be entitled to be present and to defend himself in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment. (Section 1, Rule 115, Revised Rules of Criminal Procedure) This is hinged on the fact that a layman is not familiar with the technicalities of trial. However, it is also provided by law that "[r]ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with right recognized by law.". (Article 6, Civil Code of the Philippines)

Therefore, the same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel." By analogy, but without prejudice to the sanctions imposed by law for the illegal practice of law, it is amply shown that the rights of accused are sufficiently and properly protected by the appearance of a non-lawyer.

If the non-lawyer representative of the accused knows the technical rules of procedure, it can be said that there is a valid waiver of the right to sufficient representation during the trial, especially if it was unequivocally, knowingly, and intelligently made and with the full assistance of a bona fide lawyer. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made. (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988])

In summary, it appears that the waiver of the right to counsel during trial requires the full assistance of a bona fide lawyer and the same should be unequivocally, knowingly, and intelligently made.

As a final note, the negligence of counsel binds the client. This is not true, however, if the negligence is gross.

SUGGESTED READINGS:

PAO v. Sandiganbayan. G.R. Nos. 154297-300. February 15, 2008. https://lawphil.net/judjuris/juri2008/feb2008/gr_154297_2008.html.

People v. Serzo. G.R. No. 118435. June 20, 1997.
https://lawphil.net/judjuris/juri1997/jun1997/gr_118435_1997.html.

Filote v. Sandiganbayan. G.R. No. 79543. October 16, 1996. https://lawphil.net/judjuris/juri1996/oct1996/gr_79543_1996.html.

People v. Galit. G.R. No. L-51770. March 20, 1985.
https://www.lawphil.net/judjuris/juri1985/mar1985/gr_l51770_1985.html.

Morales v. Enrile. G.R. No. L-61016. April 26, 1983. https://www.lawphil.net/judjuris/juri1983/apr1983/gr_l_61016_1983.html.

Magtoto v. Manguera. G.R. Nos. L-37201-02. March 3, 1975.
https://www.lawphil.net/judjuris/juri1975/mar1975/gr_37201_02_1975.html.